Article

The Sarai Act of 1867 – Time to let go

Alabh Anant Lal writes on The Sarai Act of 1867 and analyses its relevancy.

Alabh Anant Lal

INTRODUCTION

Tourism and hospitality industry is closely connected. Tourists need hotels to accommodate themselves and hotel’s source of revenue comes from tourists. And India, with its diverse and rich heritage has a distinct advantage in the tourism industry. The Travel & Tourism Competitiveness Report 2015 , ranks India 52nd out of 141 countries overall. It directly contributes around 7% in the GDP of India and provides 37.4 million jobs. India in 2015 hosted 8 million foreign tourists and around 1 billion domestic tourists. This figure is expected to increase significantly in future. With such potential of growth, this industry requires proactive steps to meet the future expectations and the government has taken steps in order to promote tourism. There exists a national tourism policy and a state wise perspective planning on how to promote tourism , new plans like Swadesh Darshan have been implemented to recognize and connect tourism circuits. Moreover, visa regulations for foreign tourists have been eased . But in order to promote tourism, one has to promote and support hospitality, especially hotels and other lodging places. To stimulate proper structuring

and working conditions of this sector to meet future expectations, Government can introduce policies and make sure that the legislations are not a concern. This article will deal with the latter and especially in the context of the Sarai Act of 1867 (Hereafter referred as “The Act”) and why it’s time to let it go.

Current legislation regarding the Hospitality Industry

Under the Indian Constitution, Hotels and Inns are subjected to state legislation. Every state and municipal corporations have their own state legislations and bye-laws which governs parts of this industry. However, central legislation exists as well which doesn’t deal with hotels exclusively but regulates aspects of this industry like Food , Pollution etc. When it comes to legislations concerning the hospitality industry, there are three set of laws. First are those that affect the construction and commission of the hotels and lodging house that includes land laws, industrial licensing policies etc. Secondly, which affect the service and production of food called ‘food laws’ like Food Safety and Standard Act, 2006, which is a central act etc. However, state and municipal corporations can also make laws on food safety which exclusively relates to lodging houses and hotels like New Delhi Municipal Council (Regulation of Hotels, Lodging houses and Similar Places) bye-laws, 2006. Lastly, those affecting the labourers in these establishments called ‘labour laws’ like Shop and establishment act, which is state legislations etc. India contains a number of archaic laws which govern the day to day functioning of various institutions. According to the 248th Law Commission report, there are 72 statutes that should be repealed, as they are outdated or there exists new regulations governing the same , the Act, being one of them. To understand the limitations of the Act, The first part of this article will deal with The Act, and will go on to explain its origins and provisions in detail. The second part of the article will deal with reasons as to why the act should be repealed. It will deal with

the 248th Law Commission Report and will question the relevance of the act in the present scenario. It will also analyse new and other state and municipal laws which are ready to replace the Act,. For example, Food Safety and Standard Act, 2006 that takes into account food regulation, bye – laws of states like Delhi, which has New Delhi Municipal Council (Regulation of Hotels, Lodging houses and Similar Places) bye-laws, 2006, and other state legislations Delhi Police Act, 1978 etc., are among the few, which operate, efficiently in the present scenario. The third part of this article will attempt to find limitations in the Act by comparing it with other legislations like the Shop and Establishment Act of various states and Food Safety and Standard Act, 2006. Hence, this article will attempt to find the relevance of the Act, and will conclude with how it can be repealed.

PROVISIONS OF THE ACT

The main object of the Act, was to provide for regulation of Sarais, or buildings used in the Mofussil for shelter and accommodation of travellers. According to the Act, Sarai means, “any building used for the shelter and accommodation of travellers, and includes, in any case in which only part of a building is used as a sarai, the part so used of such building.” The Act also defines Keeper of Sarai that “includes the owner and any person having or Acting in the care or management thereof.” Due to its wide definition the Act has come to include all types of lodging houses like Paying Guests, Hostels, and Hotels in recent times. The Act is modelled after certain sections of the English Common Lodging Houses Act, 1853, which regulated functioning of such establishments. However, this Common Lodging Houses Act, 1853 proved to be ineffective and hence was consolidated with Public Health Acts of

1874. The Act was essential, as earlier there was not any specific statute that solely regulated such establishments except Section 11 clause 5 of Bengal Regulation XIV of 1807 but even that was limited by the area. This Act, initially only for North Western provinces of Presidency of Fort William in Bengal, went on to regulate the whole of British India.

The Act renders certain powers to the district magistrate to govern and regulate the day to day functioning of the Sarai. According to section 3 of the Act, it is the duty of the magistrate to issue notice to the keeper of the Sarai to get its establishment registered in the district as a Sarai. The Act makes sure that there must exist a register to maintain the names and residence of all the Sarais and makes it mandatory for the owner to get the Sarai registered after which they are allowed to take in the lodgers. The provisions also take into the account cattle and other animals of the lodgers.

Section 7 of the Act is completely owner-centric. It defines duties of the keeper of Sarai and goes on to provide an extensive list of duties like water and access to Sarai to any one authorised by the magistrate, notify police in case of illness to any of the resident in the Sarai, to keep the parts of Sarai always in repair to employ guards etc. Also for any offence, the penalty should not be more than Rs 20 and a further penalty for a Rupee a day until the offence stops. It also revokes the license of the owner who is convicted for any offence of a third time.

Other Provisions of the Act involve mandatory character certificate, power of the magistrate to close down or repair any Sarai under certain conditions, owners to provide reports to the magistrate regarding lodgers , power of the magistrate to sell

18. E. Gauldie, Cruel Habitations: a History of Working Class Housing 1780-1918 (1974), London
19. Supra Note 17
20. Section 14, The Sarai Act, 1867
21. Section 15, “Where a keeper of a sarai is convicted of a third offence under this Act, he shall not afterwards act as keeper of a sarai without the license in writing of the Magistrate of the District, who may either withhold such license or grant the same on such terms and conditions as he may think fit.” The Act of 1867
22. Section 6, “The Magistrate of the District may, if he shall think fit, refuse to register as the keeper of a sarai a person who does not produce a certificate of character in such form and signed by such person as the Government shall from time to time direct.” The Sarai Act, 1867
23. Section 10, The Sarai Act, 1867
24. Section 8, The Sarai Act, 1867

the materials of a Sarai etc.

REASON TO REPEAL

Loopholes

To regulate and maintain the working conditions of the inns at that time, the Act was passed in 1867, keeping in mind the essential requirements of travellers and owners at that time. However, after more than 150 years, there are bound to be some provisions of the Act, which do not stand the test of time. Section 14 of the Act provides penalty of Rs 20, which because of inflation does not have the same value as there has been a sharp increase in the consumer price index in India. In 1971, it was 4.7, which increased to 153 in 2016. Moreover, duties in Section 7 conform to a limited scope of activity and merely relates to the social working of the Sarai at that time, which makes the provision limited in certain areas. It fails to recognize other essential aspects, which relates to the functioning of the hotels and lodging houses like food and what onus should the owner have when it is providing food and beverages. The act fails to provide any safety measures in case of any accident involving cattle or any other disaster. The act also fails to take into its ambit the technological advancements. For example, Section 41 of Bombay Shop and Establishment Act, 1948 takes into account the need for proper lighting, which the Act, fails to realise. Hence, given the present status quo it is paramount to check the relevance of such obsolete laws are scrutinized from time to time.

Law Commission Report

The 248th report by the Law Commission , calls for repealing of obsolete laws. It states that certain statutes that are recommended to be repealed, should fall under any of the following three categories. First, the subject matter of the law in question is outdated, and a law on it is no longer needed to govern that subject; second, the

25. Section 11, “If any such Sarai or any part thereof be taken down by virtue of the powers aforesaid, the Magistrate of the District may sell the materials thereof, or so much of the same as shall be taken down under the provisions of the last preceding section, and apply the proceeds of such sale in payment of the expenses incurred, and shall restore the over-plus (if any) arising from such sale to the owner of such Sarai on demand, and may recover the deficiency (if any) as if the amount thereof were a penalty under this Act.” The Sarai Act, 1867
26. Calculator Stack, Inflation In India, available at http://calculatorstack.com/inflation-calculator-india.php, Last Seen on 25/02/2017
27. Supra Note 13

purpose of the law in question has been fulfilled and it is no longer needed and third, there is newer law or regulation governing the same subject matter. It is the same report, which proposes the Act to be repealed, the reasons being the hotels are already registered under relevant state legislations and regulations made thereunder. For instance, an owner or keeper of any hotel has to get various clearances (central and state licenses) which includes waste disposal, fire & water regulations, electricity licenses, alcohol licenses and various other licenses from the local municipality. Every state has such by-laws, which are related to regulation of hotels, lodging houses and other establishments. According to New Delhi Municipal Council (Regulation of Hotels, Lodging houses and Similar Places) Bye-laws, 2006 by-laws in Delhi, every licensee is required to register itself under the Office of the Council . Every licensee is required to maintain a register, which shall contain necessary details of the lodgers, should conform to the various infrastructural requirements etc. The owner shall report to the commissioner on the occurrence of infectious disease and take measures for the same , which is quite similar to section 7 of the Act. Such bye-laws also have strict laws regarding sale and preservation of food , proper maintenance of sewage and drains and also makes sure that the in case of manufacturing food articles, safety measures like self-closing doors, wire gauge panels and chimneys are installed. Moreover, the penalty for any violation of the above by-laws is Rs 500 and an

28. Ibid. Page Number 20
29. Dr. Jagmohan Negi, Hotel and Tourism Laws, 39 (1st ed.,2001)
30. Section 4, New Delhi Municipal Council (Regulation of Hotels, Lodging houses and Similar Places) Bye-laws, 2006.
31. Section 6, “Every licensee of a lodging house shall keep a register in which he shall cause to be entered the names and addresses of all residents and inmates of his lodging house, and the date and time of their arrival, departure and such other particulars as the Chairperson may prescribe.” New Delhi Municipal Council (Regulation of Hotels, Lodging houses and Similar Places) bye-laws, 2006
32. Section 7 “The licensee of a lodging house shall, when it comes to his notice, immediately report to the Chairperson, the occurrence of any infectious disease therein and shall take measures to keep any person suffering from such disease isolated from all other lodgers unless the case has been investigated by the Chairperson.”, New Delhi Municipal Council (Regulation of Hotels, Lodging houses and Similar Places) bye-laws, 2006
33. Section 18, “Unwholesome article or materials considered unfit for human consumption shall not be kept by the licensee for sale on the premises.” New Delhi Municipal Council (Regulation of Hotels, Lodging houses and Similar Places) bye-laws, 2006
34. Section 23, New Delhi Municipal Council (Regulation of Hotels, Lodging houses and Similar Places) bye-laws, 2006

additional Rs 20 for continuing contravention. In addition to this, inspired by the Bombay Police Act, 1951, other legislations like Delhi Police Act, 1978, also provides for licensing under Section 28(x)(i) which enables the police to regulate and see to its functioning. Section 28(za) also incorporates registration of hotels and other lodging places which provides food. It puts the liability on the licensee for any offence committed like disturbances in the public sphere , failure to keep cattle in confinement , problems of transport parking , which the Act neglects. Section 35 of the said Act also deals with spreading of infectious diseases which is similar to section 7(1) of the Act. Even the punishment provided by the Delhi Police Act, 1978 is more applicable in the present scenario as compared to the punishment provided by the Act. Therefore, there are statutory provisions which provide more comprehensive regulations, which also contains the same provisions as given in the Act, and provides a punishment more pertinent to the present time, the question regarding relevance of the Act automatically originates.

OBSOLETE FEATURES OF THE ACT

One significant aspect of the Act is its provisions regarding cleanliness of the Sarais and the responsibility on the owners to maintain a hygienic lodging house according to Section 7 (3) of the Act. However, this is not exclusive to the Act only. Shop and establishment Acts, adopted in various states regulates the working conditions of the employees and day to day functioning of the Sarai or ‘establishment’. It is these Acts, which contains provisions for the hygiene and sanitation. For example Section 25 of Delhi Shop and Establishment Act, 1954 makes it an obligation for the licensee under the said Act to keep the premises clean and hygienic. Section 27 of the said Act also empowers Inspector to enforce cleaning of the premises. The said law is not limited to

35. Section 390, The New Delhi Municipal Council Act, 1994
36. Section 111, The Delhi Police Act, 1978
37. Section 85, ‘Causing obstruction and annoyance by performances, etc’ Delhi Police Act, 1978
38. Section 98, Delhi Police Act, 1978
39. Section 83, ‘Causing any obstruction in a street’ Delhi Police Act, 1978
40. Section 112(3) - If the person fails to comply with any such direction, he shall, on conviction, be punished with imprisonment for a term which may extend to the month or with fine which may extend to two hundred rupees or with both. The Delhi Police Act, 1978

Delhi only. Section 39 of the Bombay Shop and Establishment Act, 1948 and Section 26 of the Andhra Pradesh Shop and Establishment Act, 1988 also deliver the same. The said Acts also provide for proper ventilation, lighting and various safety measures like precautions against the fire, first aid kits etc. , which is further elaborated on the rules of the said act. For example, Section 26 of the Andhra Pradesh Shop and Establishment Act, 1988 provides for cleanliness, whereas section 11 of the Andhra Pradesh Shop and Establishment Rules, 1990 provides the manner in which these establishments must be cleaned. Apart from that, it also provides what essential items should be kept in the First Aid box . Other State legislations like New Delhi Municipal Council (Regulation of Hotels, Lodging houses and Similar Places) bye-laws, 2006, Maharashtra Regional and Town Planning Act, 1966 etc. also takes into cognizance proper infrastructural requirements. All of this is essential not only for Sarai’s but for all establishments with a commercial purpose to provide safe and suitable environment. Hence, even though the Act provides provisions of cleaning etc. which is required to make the establishment more hospitable, its relevance diminishes when it is put forth in the same lime light as the other state legislations mentioned above.

Limitation

One of the limitations of the Act is concerning food and its regulation. It is a common feature in the present times for the hotels and inns to provide food, as good hospitality is considered to be a priority. However, the Act does not provide any substantial law as to what procedures must be followed by the owners of these Sarais, as most of them have to provide food and other eatables in its premise. Therefore, for that, the Sarais have to register under different legislations like Food Safety and Standard Act, 2006 which also includes within its definition, hotels. As regards to the conduct,

Chapter IV of the said Act provides an extensive list of do’s and don’ts for the vendors and owners, regarding the quality of the food. Chapter VI also entails certain special responsibility on such food operators which deals with unsafe or unlicensed food articles. It also restricts the operator to employ people suffering from contagious diseases . The said Act also enlists the liabilities and gives them the power to recall food articles . One major provision of the said Act also includes Section 31, which requires mandatory license to operate and carry out food business. As to The Act, it only provides registration under the magistrate and disregards the food aspect. Though a counter could be made on the point that the Sarais during the British Raj were just to rest for a day or so and hence food was not considered essential for the Sarais, the fact is, that in the present scenario it is a common practice to serve food in such establishments. Therefore the need is for complete provisions of law which regards everything regarding the functioning of hotels, which can be seen in the state and municipal bye-laws but not in the Act.

It is important again to consider the Law Commission Report where one of the reasons provided by the Commission for the repeal of this act was that it was being misused by the authorities. According to the commission “Further, the report also suggests that police and tourism officials have harassed hotel owners in the recent past for failure to comply with the provisions of the Sarais Act.” A large number of Hotels in Kanpur were forced to register under this Act, failing which the establishments were well warned to be closed down, even though they had proper state licenses. The same was held by the report provided by Centre for Civil Society, according to which “A Delhi 5 Star Hotel was allegedly harassed by the officials for not offering free water to passer-by as provided by the Act, although they were not

prosecuted for doing so.” Authorities also created a lot of disturbance with the private hostels in Varanasi, which were not registered under the Act.

The Act, is an archaic piece of legislation. Apart from Law commission reports and report from Centre for Civil Society, P.C Jain Commission in 1998 had also recommended repealing of this Act. With penalty and other by-laws conforming to the present needs, legislations like Food Safety and Standard Act 2006, Shop and Establishment Act, providing proper and sufficient regulation and the authorities using the provisions of the Act, to create more burden on the owners, the question does arise whether hospitality industry needs an archaic set of laws to govern itself, in spite of various other stringent state regulations? Would not the industry continue to be properly regulated even with The Act repealed?

CONCLUSION

India has over 300 archaic, colonial-era enactments, which are still in force. Though some of the laws have stood the test of time like Code of Civil Procedure 1908, Code of Criminal Procedure 1898, Indian Contract Act 1872, Indian Penal Code 1860, etc. because of its importance, there are various other colonial laws, which are now redundant in this modern sphere. Drafted by British Colonial Rule, the foremost importance of these laws was to keep a check on the citizens of the colony, which now can be used to harass individuals and private enterprises. With more and more new legislations taking up the space, it is vital to remove the old obsolete laws. Government has to lay more emphasis on identifying outdated laws and take early steps for identification and repeal of such laws to provide real relief to people from

obsolete and archaic laws. There are ways through which the government can achieve this

One is the periodic scavenging of the old statutes by repealing and amending them from time to time. This is done by either repealing the Act alone or issuing repealing and amending Acts from time to time. For latter purpose, government has depended on law commission and other independent commissions to suggest the obsolete and old laws that could be repealed. The law commission for the first time, in its 18th report (1961) and 81st report (1979) recommended repealing of particular laws. After that, it recommended repealing of laws in its 96th (1984), 148th (1993) and 159th (1998) reports, out of which only 10 still remains operative. Over 125 obsolete Acts were repealed by the government in the Repealing and Amending Act 2015 , and Repealing and Amending (second) Act, 2015 , and this was done in the month of May alone. Before this, 357 Acts were made redundant in 2001. The Repealing and Amending Act, 2016 repealed 295 Acts and made minor amendments in 2 statutes. This can be one way to repeal the Act.

After the 248th Law commission report in September 2014, which advised the government to repeal the Act, three Repealing and Amending Acts were passed by the Government of India and 400+ Acts were repealed, but the Act, wasn’t one of them. Though this process of introducing repealing Acts removes the outdated laws in bulk, the fact that it reviews large amount of Acts makes the process cumbersome. Various committees like Ramanujam Committee, P.C Jain Committee and Law commissions are set up by the government to review bulk of laws and after their reports, the Legislature and the Ministries then decide which Act to repeal. It is a time consuming practice and makes the process susceptible to omission of certain Acts. However,

there exists a different approach to this difficulty, wherein mandatory reviewing of each act will be done separately after a specified time, after which the fate of the Act can be decided separately and not it bulk.

The process of collective repealing and amending is employed by our legislature, there is one other alternative through which such outdated laws could be repealed and that too, automatically. This could be done amending the Act to include a Sunset clause. The sunset clause is a statutory provision providing that a particular agency, benefit, or law will expire on a particular date, unless it is reauthorized by the legislature. Sunset clause provides that, in the absence of a positive Act of the legislature, administrative agencies, Acts and/or programs will automatically terminate after a specified period. . The sunset provision typically requires that the legislation or board undergo a review, usually conducted by legislative staff or by state auditors. The parliamentary standing committee while realising the need to mop up the old laws, suggested the sunset clause in the Act, which could allow their automatic repeal so that these do not remain on statute book after their purpose is achieved. Such a provision will do away with the need of repealing of Acts every now and then. Various legislations around the world have opted for a sunset clause in their Acts. The Patriot Act of 2001, a famous piece of legislation in U.S contains a sunset clause, which after being renewed twice, now stands expired (certain parts of the said Act are expired). In 2004, The Federal Assault Weapons Ban expired due to a 10-

year sunset provision. This concept is not foreign to India. The government has proposed to include sunset provisions in Income Tax Act regarding tax incentives in Special Economic Zones. Sunset clause is also present in The Foreign Exchange Management Act (FEMA), 1999 which proposed that no adjudicating authority shall take notice of any contravention under Foreign Exchange Regulation Act, 1973 two years after the coming into force of FEMA. Therefore, to amend the Act using this clause, laws like the Act can include a sunset clause, which could see an automatic and smooth repeal of the Act in the near future. One model Sunset provision, inspired by the Patriots Act, 2001 of USA and Legislative Instruments Act, 2003 of Australia can be as follows:
“This Section repeals the Act and the provisions thereof will cease to have effect on 1st April, 2018. The repeal of the said Act does not prevent the Houses of Parliament to review and reinstate the Act, if deemed necessary.”

According to the commission in its 96th report: “Every legislature is expected to undertake what may be called the periodical spring-clearing of the corpus of its Statute Law, in order that dead wood may be removed and citizens may be spared of the inconvenience of taking notice of laws which have ceased to bear any relevance to current conditions. This process in itself, assumes still greater importance in modern times when Statue Law is growing in bulk and magnitude....” The Sarai Act of 1867, was once an important piece of legislation; it was the sole statute, which regulated the lodging houses and other such establishments. However, the new state legislations have come up in every state that delivers the same objective as the Act of, with, improved and all round provisions. Moreover, when an act like the Sarai Act, which

can be used to harass and hassle the owners, one has to question its significance in the present scenario. Such outdated laws can act as dead wood if kept unchecked, the effects of which, common citizens have to face. More acts will be passed by the legislature, it is inevitable. The onus here, lies on the legislature as well to conduct the cleaning of the statute cabinet, which has been accumulating dust.

ALABH ANANT LAL is law student pursuing his B.LS LLB (Hons.) from Government Law College, Mumbai. He may be reached at alabhala96@gmail.com.